Boland v Dillon; Cush v Dillon

[2007] NSWDC 8

CITATION:	Boland v Dillon; Cush v Dillon [2007] NSWDC 8
HEARING DATE(S):	02/02/07
JUDGMENT DATE:	9 February 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Notices of motion dismissed; 2. Plaintiffs pay defendant’s costs; 3. Any application in relation to any orders sought concerning Section 14B Limitation Act 1969 to be filed in 14 days; 4. Proceedings stood over to 9 March 2007
CATCHWORDS:	Defamation - Section 7A jury trial - change of venue - special fixture
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Section 56 Civil Procedure Rules Part 8 & 8.2, Part 29 & 29.3 Defamation Act 1974 (NSW), Section 7A Defamation Act 2005 (NSW) Defamation Act 1996 (UK) Limitation Act 1969 (NSW), Section 14B Limitation Act 1980 (UK)
CASES CITED:	Cording v Trembath [1921] VLR 163 at 167 Griffith & Ors v Australian Broadcasting Corporation & Ors [2003] NSWSC 298 Muter v Newcastle-Upon-Tyne Aero Club Limited 17 December 2001 Steedman v BBC [2002] ELR 17 at 17
PARTIES:	Leslie Boland(Plaintiff); Amanda Cush (Plaintiff) Meryl Lurline Dillon (Defendant)
FILE NUMBER(S):	4917/06; 4735/06
COUNSEL:	T Alexis SC (Plaintiffs) M Lynch (Defendant)
SOLICITORS:	Cole & Butler (Plaintiffs) Banki Haddock Fiora (Defendant)

1 Each of the plaintiffs, in Statements of Claim filed on 17 February 2006 in the Supreme Court of New South Wales, seeks damages for defamation. These proceedings were subsequently transferred to this court. The two publications pleaded in each of these proceedings are identical. The first matter complained of is a slander asserted to have been published by the defendant, of and concerning each of the plaintiffs, either on 21 January or 18 February 2005. The defendant, who was travelling by car from Moree to Inverell, is alleged to have said to Michelle Chittenden:

“What do you think of Les and Amanda? They seem to be very close. I think they might be having an affair”.

The second publication pleaded is that on or about 8 April 2005 in Moree the defendant said to James Croft words to the effect of “it is common knowledge among people in the CMA that Les and Amanda are having an affair.” Extrinsic facts are pleaded for both publications to establish that “Les” is Leslie Boland (the plaintiff in proceedings No. 4917 of 2006) and “Amanda” is Amanda Dillon (the plaintiff in proceedings No. 4735 of 2006).

2 Each of the matters complained of is asserted to give rise to two imputations. As to Mr Boland, the imputations are that as a member of the Border Rivers–Gwydir Catchment Management Authority, he was acting unprofessionally by having an affair with the General Manager of that organisation, and further that he was unfaithful to his wife. As to Ms Cush, the imputations are that as General Manager of the Border Rivers–Gwydir Catchment Management Authority she was acting unprofessionally by having an affair with a member of the board of that organisation and further that she was undermining the marriage of Mr Boland and his wife.

3 By reason of the provisions of Section 14B Limitation Act 1969 (NSW) the first matter complained of may fall outside the twelve-month limitation period and leave would be required to commence proceedings out of time. Both actions are governed by the provisions of the Defamation Act 1974 (NSW) by reason of the publications having been made prior to the commencement date of the Defamation Act 2005 (NSW).

4 After these proceedings were commenced in the Supreme Court on 17 February 2006, they followed a fairly leisurely path. Objections were taken in the Supreme Court to the form of the Statement of Claim and an amended Statement of Claim was filed and served. On 19 July 2006 Nicholas J held that the imputations in the amended Statement of Claim (which are those summarised above) were reasonably capable of being conveyed by the matters. On 28 July 2006 pursuant to Section 26 Civil Procedure Act 2005 (NSW) his Honour referred the matter to mediation. The mediation was not successful and the matter was transferred to this court in September 2006. The matter came before the Registrar on 10 November 2006 and was first listed in the District Court defamation list on 27 November 2006.

5 On 27 November 2006, when the matter came before me, the defendant raised the limitation point. The plaintiffs’ solicitor advised he proposed to file a Notice of Motion seeking a change of venue and for leave to commence proceedings out of time concerning the first publication. The orders I made in each of these proceedings were as follows:

1. Plaintiff to file and serve Notice of Motion and affidavits in support in relation to change of venue and any orders sought concerning Section 14B Limitation Act 1969 by 8 January 2007.
2. Defendant to reply by 22 January 2007.
3. Exchange of submissions by Monday 29 December.
4. Set down for hearing (half day plus) Friday 2 February 2007.

6 On 27 November 2006 the solicitors acting for Ms Cush in proceedings 4735 of 2006 ceased to act for her. She appears to have remained without a solicitor from that date until at least the middle of January 2007 and no action was taken on her behalf to implement these orders prior to the due dates. Neither Ms Cush nor Mr Boland (or his solicitors) took any further steps in their respective defamation proceedings until after the end of term (15 December 2006).

7 On 18 December 2006 Mr Brigden, a partner in the firm of solicitors who were the Moree agents for the solicitors for Mr Boland, telephoned the Registrar of this court to ask about the procedure to obtain a special fixture for a two-day jury hearing in Moree and the steps required to obtain such a special fixture. Mr Brigden was informed that the listing of special fixtures was at the sole discretion of the Chief Judge of the District Court and any application must be made before the Chief Judge. Without prior notification to the solicitors for the defendant, Mr Brigden then telephoned the associate to the Chief Judge and was offered the date of 21 December 2006 for such an application. It was then that Mr Brigden contacted Mr Burke at the offices of the solicitor for the defendant on 19 December 2006. He was informed that it was not possible for there to be an appearance at such short notice. Accordingly, the Chief Judge’s associate was advised that 21 December 2006 was not suitable for the parties, whereupon she offered 1 February 2007 as a suitable hearing date. Mr Brigden thanked the Chief Judge’s associate for this date and the matter was accordingly listed for hearing before the Chief Judge of this court on 1 February and a Notice of Motion filed on 9 January 2007 was made returnable on this date in Court 3.1 of the Downing Centre.

8 It does not seem to be in dispute that at no time was the Chief Judge or his associate informed that there was an application listed before me for hearing as a half day plus on 2 February 2007 for application for a change of venue and leave to commence proceedings out of time. Nor were the defendant’s solicitors told whether or not these applications would be proceeded with, either before the Chief Judge or before me. Further, no notification was given to me by the solicitors for the plaintiffs as to whether or not they intended to proceed with the applications listed for hearing before me. It only became clear to me during the course of hearing the plaintiffs’ applications that notwithstanding the fact the parties had been told that only the Chief Judge can hear applications for special fixtures, the application that was before me was an application for a special fixture, not the applications for change of venue and leave to commence out of time which I had listed for hearing on 2 February.

9 It has been made clear to me that no application is going to be made by either plaintiff for either a change of venue or for leave to commence proceedings out of time in relation to publication of the first matter complained of. The Chief Judge has vacated the hearing of this application before himself on 1 February. A Notice of Motion has been handed up to me in court on 2 February for Ms Cush in proceedings 4375 of 2006 asking for a special fixture. In these circumstances, it seems I must hear and dispose of these applications for special fixtures as best I can.

10 The orders sought in the Notices of Motion which are before me in both proceedings seek the following orders:-

1. Pursuant to UCP Rules Part 29 Rule 29.3 the hearing pursuant to Section 7A of the Defamation Act 1974 in these proceedings be listed at Moree.
2. The costs of this motion be the costs in the proceedings.

11 A Notice of Motion and Affidavit in Support were filed in proceedings No. 4917 of 2006 on 9 January 2007, apparently following a conversation with the Chief Judge’s associate on or about 20 December 2006. No Notice of Motion was filed in the proceedings commenced by Ms Cush. However, senior counsel for Ms Cush has handed up to me an unfiled Notice of Motion in proceedings No. 4735 of 2006 and sought leave to move upon it instanter. Indeed, it is essential that there should be Notices of Motion in both proceedings because Nicholas J had previously ordered, very sensibly, that the proceedings in matter No. 4735/06 and 4917/06 should be heard together.

12 Part 29 Rule 29.3 of the UCP Rules provides that the court may make “such order as it thinks fit for fixing the time and place of trial” and this includes considering issues relevant to the change of venue. The Practice Notes set out at paragraph 29.3.15 concerning change of venue are the same as those set out in paragraph 8.2.5 to Part 8 Rule 8.2, which deal with change of venue concerning special fixtures, and there is considerable overlap. Both sections note that it is generally convenient to try proceedings in the locality where the cause of action arose and where the majority of witnesses are resident.

13 The cases which are referred to in the Practice Notes in support of these principles, which I note include a number of defamation cases, were decided at a time when the cost of litigation was lower, transport was more difficult and courts had more flexibility in terms of budgets to allow for country sittings. Those days, sadly, are at an end. The District Court’s calendar reflects the increasing use of the District Courts in the city and suburban areas and the gradual decline of the country circuits which used to be such a significant part of this court’s work. Witnesses today can give evidence by telephone or video link, where issues of credit are not involved, and the days when a court would give greater weight to the fact that witnesses were in the country having to work on farms, and could ill afford even a day away from the farming activities, are drawing to a close.

14 Having made this general observation, I should however have regard to the specific issues raised in this application and the merits of each of the plaintiff’s arguments. I should first note that these are Section 7A Defamation Act 1974 proceedings, which will involve essentially an investigation of whether the slanderous statements (which the defendant denies making) were made to each of the two identified witnesses, Mrs Chittenden of Moree and Mr Croft of Uralla. A two-day estimate for the length of the hearing is agreed by the parties to be an accurate estimate of the Section 7A hearing time.

15 No information is put before me that the two publication witnesses, who are employees of the Border Rivers–Gwydir Catchment Management Authority, would be inconvenienced by having to attend the Sydney Registry of this court for a two-day hearing, other than by inference, in that one resides in Moree and the other works there. The person who complains it is inconvenient to come to Sydney is the plaintiff. His solicitor, Mr Butler, swore an affidavit on 3 January 2007 and was cross-examined at some length about the inconvenience to Mr Boland. He told the court that Mr Boland is a primary producer who has three farms in the Moree area. He would be unable to attend to his cattle for at least four days if there was to be a two-day hearing in Sydney and during drought times daily inspection of cattle is important.

16 In cross-examination of Mr Butler, Mr Butler was shown a list of meeting dates for the Catchment Board of which Mr Boland was a member, which showed that he regularly attended meetings some hundreds of kilometres away (at Inverell and Glen Innes). Only two of the 2006 meetings were held at Moree. In addition, Mr Butler was cross-examined about the possibility of a casual employee being hired to look after the plaintiff’s cattle, or the availability of assistance from other family members, for a period of one or two days while Mr Boland came to Sydney.

17 While the plaintiff is entitled to attend a Section 7A jury trial, his presence is not required. The plaintiff does not give evidence at such proceedings. It is not uncommon for plaintiffs to remain away from Section 7A jury trials. Since the evidence relates solely to the statements made by the defendant to the third parties, the plaintiff’s role in a Section 7A jury trial would simply be to sit there and, if it was considered appropriate, to be pointed to as the plaintiff by his counsel, prior to empanelment of the jury, so that any member of the jury panel could indicate any prior association with the plaintiff of the kind that would make jury panel member reluctant to serve on a jury.

18 Miss Cush resides at Orange. It is common ground that Orange is equidistant from Moree and Sydney, being approximately 300 kilometres from each of these locations. While she has supported Mr Boland’s application, she has not provided any additional information in relation to her own circumstances.

19 There is no doubt that there is a substantial connection to the Moree area. One of the plaintiffs, the defendant and the two publication witnesses are to be found there. I am prepared to accept it is inconvenient for a farmer to come to Sydney for a court case, even a short case lasting two days. Is that a sufficient basis for the granting of a special fixture?

20 First I should consider the practicality of a special fixture at Moree. Senior counsel for Mr Boland submitted that there were three ways that the court could provide a special fixture for a Section 7A jury trial:

1. Put the matter at the end of a criminal sittings in the Moree court. As the Moree District Court has not had a civil sittings for a number of years, the court would have to use some of the existing or future criminal sittings times for the hearing of a Section 7A jury trial. Alternatively, the Section 7A could be listed at the commencement of the sittings, persons who were waiting for the criminal trials to start could be told that the criminal trials would start on Wednesday rather than Monday. Given that persons who would be before the court may be persons who were in custody, this seems to me a most unsatisfactory suggestion. The suggestion that the case wait till the end of the sittings might put undue pressure not only on the court but also on the legal representatives and jurors in criminal trials. Criminal trials should not be under pressure to finish earlier in the sittings to make way for a civil jury trial, and the problems caused by empanelment of a jury on a Thursday or Friday are considerable.

2. Alternatively, another court close to Moree could be used. The court that was suggested was Tamworth. Looking at the catchment management area map which is attached to exhibit 1, I cannot see why Tamworth has been selected. It was claimed that this court had “civil sittings all the time” although I consider this as something of an over-statement. Doing the best I can from my slender knowledge of court resources, I do not think that there are any courts which are geographically preferable to Sydney in the sense of having sittings “all the time” which could readily accommodate a Section 7A hearing being specially fixed or being added to the existing lists, without a delay of some months.

3. Alternatively, the court could appoint an Acting Judge who would travel to Moree for a special civil sittings. This would also require the employment of an associate and a court reporter and, probably, a court officer of some kind, which would involve considerable expense.

21 Mr Butler said in his evidence that it was more expensive for everyone to go to Sydney than for everyone to go to Moree. He asserted that the costs of the barristers and solicitors for the parties (excluding his own firm) and the relevant court staff travelling to Moree were less than or equal to the cost of the two witnesses and Mr Boland travelling to Sydney to give evidence coming to Sydney (I have excluded Ms Cush’s costs from these calculations).

22 Since the two witnesses would no doubt seek to be excused after they had given their evidence, it seems to me unlikely they would be required to stay in Sydney for more than one night and, as I have earlier indicated, while the plaintiff is entitled to come, he is not required to come, and he certainly would not be required to attend for the whole of the proceedings. The cost of a judge, an associate and a court reporter, as well as local court staff, are an additional costs burden of some substance. It would probably be preferable to appoint an acting judge rather than change existing circuit sitting times.

23 In paragraph 13 of his affidavit Mr Butler gives a second reason for seeking a special fixture, namely that the “preferred venue” of the plaintiff is Moree because not only are the parties and their witnesses based in Moree but “a country jury would better appreciate the evidence and significance of it compared to a jury drawn from another community.”

24 Mr Butler explained in cross-examination that what he meant by this was that people in a small town would immediately appreciate the tremendous damage that could be done. He said “in a small community gossip and rumour spread like wildfire” and “the speed at which slanderous comments are repeated is far more readily appreciated by country people.” If that is so, many people in the Moree area would be likely to have already heard this slander.

25 If this is the case, this may well be a good example of a case where there would be doubt as to whether a proper trial could be had before a jury drawn from persons living near the venue, for the reasons explained by Sir Leo Cussen in Cording v Trembath [1921] VLR 163 at 167. If it is the case that discussion of the matter complained of is all over the Moree community, this could create a serious difficulty for the trial judge, because the probability is that a number of potential jurors would have heard the republished imputations. Further, issues of the likelihood of republication are not matters for the jury, because while whether the original publication was made is a matter for the jury, any question of republication or the impact on the plaintiff’s reputation as a result is not a question for the jury under section 7A but for the judge hearing the remainder of the proceedings once the section 7A hearing has been concluded: see the cases discussed by Levine J in Griffith & Ors v Australian Broadcasting Corporation & Ors [2003] NSWSC 298.

26 The potential for prejudice if the matter is specially fixed in Moree was seized upon by the defendant. It was submitted by the defendant’s counsel that there would be real difficulties for a fair trial in Moree by reason of the fact that the defendant is a candidate in the forthcoming State elections. Since members of the jury panel are selected from the electoral roll, they would all be persons to whom the defendant was known as a candidate in State elections. However, by reasons of my findings in relation to other matters set out more particularly below, this is not an issue which has been given weight by me.

27 Section 56 of the Civil Procedure Act has the following to say about the overriding purpose in relation to case management and interlocutory matters in the Supreme and District Courts:

“56(1) The overriding purposes of this Act and rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in these proceedings.”

The question for me to determine is whether the special fixture of a Section 7A jury trial in these proceedings in Moree would be just, quick and cheap, or unjust, slow and expensive. While the matter could be given a Section 7A jury trial hearing in this court almost immediately, the court calendar is set until July 2007 and there can be no certainty as to when a court date could be given for this matter to be heard in Moree until the second half of the year. In addition, there would be substantial expense involved in the hearing of this matter as a special Section 7A fixture in Moree.

28 While I do not have information that would be available to the Chief Judge concerning this court’s budget, drawing on my own knowledge of country circuits, there is enough work for the Moree criminal circuits without imposing the additional burden of a civil jury trial on a busy criminal circuit judge. The most likely option would be a special fixture with an acting judge, the costs of which (including court recording and court staff costs) would be substantial. In addition, I remain troubled by the likelihood that a number of persons in the Moree area appear, from the evidence of Mr Butler, to have heard of this particular rumour on the grapevine. Even if a special direction is given by the trial judge in this regard, it would be necessary for a number of panels of jurors to be called in order to have a sufficiently large jury pool, which is itself an additional expense.

29 This is not a case where one or more of the witnesses has a serious health problem or there is some urgent reason requiring a special fixture. To the contrary, the plaintiffs seem to have taken their time both in commencing and prosecuting this action, and the seeking of a special fixture for a civil jury trial in Moree, a court where civil matters are not generally heard, they are seeking an indulgence for which there would need to be reasons of a far more compelling nature than any that have been advanced so far.

30 What must be done in these proceedings, before they go any further, is that the plaintiffs should indicate without any ado whether they propose to bring any application for leave to commence proceedings out of time in relation to the first matter complained of. While senior counsel for the plaintiffs seems to think that such an application would be granted as a matter of course, I note that this has not been the case in England. In England the Limitation Act 1980 was amended by Section 5(4) Defamation Act 1996 (UK) to insert a new Section 32A. Unlike the limitation provision in New South Wales, there is a checklist of circumstances required by the court, but the court’s discretion has still been described as “largely unfettered” (Steedman v BBC [2002] ELR 17 at paragraph 17). Nevertheless, Gatley on Libel and Slander (10th edition paragraph 18.26) notes that the only case where the English provision was applied in the claimant’s favour was a decision in Muter v Newcastle-Upon-Tyne Aero Club Limited December 17 2001, where there was notification of the cause of action literally within days of the expiry of the limitation period. Gatley at paragraph 18.26 construes the court’s approach to delay as undergoing a “sea change” because of the need for prompt action in libel cases, a point made by David Field J at paragraph 43 of Steedman, supra. Once this issue has been resolved, and any witness statements by the witnesses provided, a Section 7A jury trial can be arranged in the Sydney Registry without any further delay, and these proceedings can then proceed expeditiously towards some kind of final conclusion.

1. Notices of motion dismissed.
2. Plaintiffs pay defendant’s costs.
3. Any application in relation to any orders sought concerning Section 14B Limitation Act 1969 to be filed in 14 days.
4. Proceedings stood over to 9 March 2007.